Stover: Board must define terms in order for the Court to review its decisions

Stover v. McDonough, 35 Vet.App. 394 (2022)

HELD: Board must define “near” before the court can review its decision that a veteran was not “on or near the perimeter of the base.” And the board must apply the m21-1 when it adopts it as a rule in its decision.

Summary: Thailand Veteran who served at Takhli Royal Thai Air Force Base claimed service connection based on herbicide exposure, stating that he worked 100 years from the base perimeter and slept near the perimeter. The Board determined that he was not “near the perimeter” and thus could not be found to have been exposed to herbicides.

The Court held that because the Board adopted a provision of the M21-1 regarding herbicide exposure for Thailand veterans, it was bound by that provision. However, because the Board did not define or explain “near the perimeter,” the Court remanded for the Board to do so. The Court rejected the Secretary’s proposed definition - that “near the perimeter” means “ON the perimeter” - not because the definition is ridiculous, but because it was not the Board’s definition.

Advocacy note: The PACT Act created a presumption of herbicide exposure for these Thailand veterans - but this case is still useful, for effective date purposes, for those who had claims/appeals pending prior to the PACT Act.

Aviles-Rivera: NAS Updates are evidence subject to AMA evidentiary limits

Aviles-Rivera v. McDonough, 35 Vet.App. 268 (2022)

HELD: NAS updates that were created outside the AMA evidentiary window are evidence and cannot be deemed to be constructively in the record.

Summary: In April 2017, the Board remanded the Vietnam veteran’s appeal for service connection for hypertension for an examiner to consider the NAS Updates. The examiner provided an opinion in October 2017. In June 2018, the veteran opted into the AMA through the RAMP pilot program. In September 2018, VA issued a Higher Level Review decision. In November 2018, the NAS Update links hypertension to herbicide exposure. The veteran appealed to the Board - selecting the “Direct Review” option. In April 2019, the Board continued to deny service connection, without considering the NAS Update.

On appeal to the CAVC, the veteran argued that the Board improperly ignored the 2018 NAS Update and that the examiner’s opinion was inadequate because it was rendered without the benefit of that information. The CAVC rejected these arguments, finding that because the veteran opted into the AMA and chose the “Direct Review” docket at the Board, he “agreed” that the Board would not consider any evidence after the September 2018 decision.

The Court found that the 2017 Board remand to ”consider NAS Updates” did not require VA to delay the appeal while waiting for any future updates - and also held that the AMA evidentiary review limits do not violate the principles of fair process.

This case was appealed to the Federal Circuit on July 22, 2022.

Procopio: Blue Water Navy Veterans Entitled to 38 U.S.C. § 1116 Presumption

Procopio v. Wilkie, docket no. 2017-1821 (en banc) (Fed. Cir. Jan. 29, 2019)

HELD: Blue Water Navy veterans who served in the “12 nautical mile territorial sea” of the Republic of Vietnam are entitled to the presumption of herbicide exposure and service connection under 38 U.S.C. § 1116.

SUMMARY: Mr. Procopio served aboard the USS Intrepid from 1964 to 1967, during which time the ship was deployed in the offshore waters of the Republic of Vietnam. In 2006 and 2007, he sought service connection for diabetes and prostate cancer, which the Regional Office denied in 2009. The Board affirmed the denial, as did the CAVC, relying on Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008). In Haas, the Federal Circuit had held that the language in 38 U.S.C. § 1116, “served in the Republic of Vietnam,” was ambiguous and thus deferred to VA’s “reasonable interpretation” that required “duty or visitation on the landmass” of Vietnam or in the inland waterways in order to be entitled to the presumption of service connection for certain herbicide-related conditions. Haas, 525 F.3d at 1184, 1195.

Mr. Procopio appealed to the Federal Circuit and the Court asked the parties to address (1) whether the phrase “served in the Republic of Vietnam” includes “service in the offshore waters within the legally recognized territorial limits of the Republic of Vietnam” and (2) what role, if any, does the “pro-claimant canon” of interpretation of veterans’ statutes play in this analysis.

The Federal Circuit, en banc, reviewed the history of the Agent Orange Act of 1991 and VA’s implementing regulations, and assessed VA’s interpretation of the statutory language under the analysis set forth in Chevron U.S.A. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43 (1984). Chevron directs courts to first assess “whether Congress has directly spoken to the precise question at issue.” If so, the court is to “give effect to the unambiguously expressed intent of Congress.” If the statutory language is ambiguous, step two of the Chevron analysis requires courts to determine “whether the agency’s answer is based on a permissible construction of the statute” – and, if the agency’s interpretation is “reasonable,” Chevron requires courts to defer to that reasonable interpretation.

In this case, the Federal Circuit determined at step one of the Chevron analysis that “Congress has spoken directly to the question of whether Mr. Procopio, who served in the territorial sea of the ‘Republic of Vietnam,’ ‘served in the Republic of Vietnam.’” The Court based this determination on international law which “confirms that, when the Agent Orange Act was passed in 1991, the ‘Republic of Vietnam’ included both its landmass and its 12 nautical mile territorial sea.” The Court also relied on the language in § 1116 that includes “active military, naval, or air service . . . in the Republic of Vietnam” as reinforcing the “conclusion that Congress was expressly extending the presumption to naval personnel who served in the territorial sea.”

Because the Court determined at Chevron step one that Congress’s intent was clear, it did not reach step two. The Court thus overruled Haas and held that veterans who served in the 12 nautical mile territorial sea of the “Republic of Vietnam” are entitled to the presumption of service connection under 38 U.S.C. § 1116.

FULL DECISION

NOTE: On November 2, 2018, docket no. 17-1679, the Supreme Court granted certiorari in Gray v. Wilkie, to address whether the Federal Circuit has jurisdiction to review VA’s interpretation of its own regulation when VA issues that interpretive rule in its adjudication manual. The manual provision in question is the one that excludes deep water harbors from its definition of “inland waterways.” On February 1, 2019, the Solicitor General submitted a memorandum to the Supreme Court “suggesting that this case may become moot” in light of Procopio. The memorandum notes that “the Solicitor General has not yet determined whether to file a petition for a writ of certiorari in Procopio” and, therefore, the Gray case is not yet moot – nor is it likely to become moot before the February 25, 2019 oral argument. However, the Solicitor General stated that the case may become moot after oral argument but before a decision is issued.  

LINK TO GRAY DOCKET: https://www.supremecourt.gov/docket/docketfiles/html/public/17-1679.html

[My opinion: It is unlikely that VA will ask the Supreme Court to review Procopio. It is more likely that VA will pressure Congress to amend the statute to define “Republic of Vietnam” as limited to its landmass and inland waterways.]

Gray: FC cannot review M21-1 revision to "inland waterways" definition

Gray v. Secy of Veterans Affairs, 875 F.3d 1102 (Fed. Cir. Nov. 16, 2017)

HELD: The Federal Circuit lacks jurisdiction to review VA’s policy manual revisions that exclude Navy personnel who served outside the “inland waterways” – including ports, harbors, and open-water bays – because the M21-1 policy manual is merely “guidance to VA adjudicators” and “lacks the force and effect of law.”

SUMMARY: Robert Gray is a Blue Water Navy veteran who challenged VA’s exclusion of Da Nang Harbor from its definition of “inland waterways” for purposes of presumptive service connection for conditions related to herbicide (Agent Orange) exposure. The Veterans Court concluded that VA’s definition was “both inconsistent with the regulatory purpose and irrational,” and remanded for VA to “reevaluate its definition of ‘inland waterway’ to be consistent with [38 C.F.R.] § 3.307(a)(6)(iii),” the regulation governing the presumption of herbicide exposure.  

Instead of amending the regulation – which would have required notice-and-comment rulemaking – VA amended its M21-1 policy manual with language that continued “to exclude all Navy personnel who served … in [Vietnam’s] ports, harbors, and open waters [] from presumptive service connection for diseases or illnesses connected with exposure to Agent Orange.”

Mr. Gray challenged the amendment to VA’s policy under 38 U.S.C. § 502, which governs judicial review of rules and regulations. This statute limits the Federal Circuit’s jurisdiction to agency actions that are subject to two provisions of the Administrative Procedure Act – 5 U.S.C. § 552(a)(1) and § 553. The question in this appeal is whether the revision to the M21-1 falls under § 552(a)(1). The Federal Circuit held that it did not.

This provision covers agency actions that are published in the Federal Register and are “substantive rules of general applicability as authorized by law, and statements of general policy or interpretations of general applicability formulated and adopted by the agency.” In other words – notice-and-comment rulemaking. The Federal Circuit stated that there are three factors to consider in assessing “whether an agency action constitutes substantive rulemaking … (1) the [a]gency’s own characteristics of the action; (2) whether the action was published in the Federal Register or the Code of Federal Regulations; and (3) whether the action has binding effects on private parties or on the agency.” (quoting Disabled Am. Veterans v. Sec’y of Veterans Affairs, 859 F.3d 1072, 1077 (Fed. Cir. 2017).  

The Court found that the M21-1 is meant to guide VA adjudicators, but “is not intended to establish substantive rules.” The Court noted that the Board is not bound by the M21-1 – and thus “where the action is not binding on private parties or the agency itself, we have no jurisdiction to review it.”

The Court found that Mr. Gray – and his fellow Blue Water Navy Veterans – still had other options to pursue. First, if they are “adversely affected by a M21-1” provision, they can challenge that provision on direct appeal. Second, they can petition VA for rulemaking. (Mr. Gray pointed out that both options were currently pending.) The Court recognized that it would likely take years for “individual adjudications or petitions for rulemaking” to run their course. Unfortunately, the sad reality of this situation does not change the Federal Circuit’s jurisdiction.

In a partial dissent, Judge Dyk argued that DAV was wrongly decided and that it unnecessarily narrows the Court’s jurisdiction. In Judge Dyk’s view, the “relevant question for jurisdictional purposes … is whether the Manual revisions here are properly characterized as ‘statements of general policy or interpretations of general applicability.” If so, the Federal Circuit would have jurisdiction to review the challenge. The problem with DAV (and, now, the majority opinion in this case), is that it essentially enables VA to evade judicial review by simply not publishing the revision in the Federal Register.

FULL DECISION

THAILAND, AGENT ORANGE

Parseeya-Picchione v. McDonald, docket no. 15-2124 (July 11, 2016)

HELD: Even if the Board determines that a veteran’s testimony is not credible, it must still review the other evidence of record and provide an adequate statement of reasons or bases for rejecting it.

Advocacy note: Evidence relevant to this appeal – and to other Thailand veterans with appeals related to herbicide exposure – includes (1) third-party evidence showing that most flights from the U.S. to Thailand stopped in Vietnam en route to Thailand; (2) VA’s C&P Bulletin stating that “some evidence that the herbicides used on the Thailand base perimeters may have been either tactical, procured from Vietnam, or a commercial variant of much greater strength and with characteristics of tactical herbicides”; and (3) the Project CHECO report, describing the air base locations.

SUMMARY: The veteran in this case served in the U.S. Army from 1966 to 1977, including a deployment to Thailand from January 1968 to January 1970. In Thailand, he was assigned Camp Friendship at Korat Royal Thai Air Base.

In 2005, he filed a claim for service connection for diabetes based on exposure to herbicides. He testified that he was in Vietnam in January 1968 during a layover between Hawaii and Thailand. He also asserted that he was exposed to herbicides when he was stationed at Camp Friendship. VA denied his claim, and he appealed up to the Veterans Court, which remanded the appeal in 2011.

Two months after the Court’s remand, the veteran died, and his wife substituted for him in his appeal. She provided a copy of the Project CHECO report, a declassified Air Force report, which described Camp Friendship as “bordering the perimeter of the Korat Air Force base.” She also provided evidence of flight paths from the U.S. to Thailand, showing that these flights had to make several stops, including in Vietnam. The Board continued to deny benefits, and she appealed to the Court. The Court remanded again because the Board failed to provide any explanation for its determination that the evidence did not show that the veteran was exposed to herbicides.

In May 2015, the Board denied the claim again, finding that the preponderance of the evidence was against the veteran’s assertion that he “had set foot in Vietnam.” The Board rejected the veteran’s statements as inconsistent and rejected the evidence regarding the flight paths because it did not corroborate that the veteran spent time in Vietnam. The Board also noted that while Camp Friendship was located “near the outer edge of [Korat]” it was “not located on the perimeter” of the base, as required by VA policy. The Board added that the veteran’s military occupational specialty (MOS) as “clerk” would not require his presence on or near the perimeter of the base.

The veteran’s widow appealed to the Court again. The Court first determined that there was no error in the Board’s determination that the veteran’s testimony was not credible regarding his layover in Vietnam. However, the Court noted that the Board is required to review and explain its rejection of the other evidence of record.

Specifically, the Court noted that the appellant submitted third-party evidence stating that “it would be the exception [rather] than the rule where a flight [from a base not in Southeast Asia to a base in Thailand] would bypass [Ton Son Nhut Air base in Vietnam, where the veteran’s alleged layover took place].” Also in the record: “An email from James S. Howard, an archivist from the Air Force Historical Research Agency, reports that ‘[a]s a general rule, military cargo aircraft, especially those engaged in “airlines” would stop over at Ton Son Nhut Air Base, Republic of Vietnam en[]route to bases in Thailand. Very few of this sort of flight were made “direct” to bases in Thailand from bases outside Southeast Asia.’” In addition, the record contained a letter from a retired Air Force major, asserting that “[b]ased on my experience, it was common for military aircraft flying to and from airbases in Thailand to land at Ton Son Nhut [Air Base] and other Vietnam airbases.” Id.

The Board had rejected this evidence because it was only “general information” and did not support the claim “that the veteran himself stopped in Vietnam over-night during his trip to Thailand.” The Court found that this was not an adequate statement of reasons or bases because “[t]he Board failed to specifically discuss any of this evidence.”

Advocacy note: I believe this portion of the decision is important because it strengthens the requirement that the Board expressly discuss favorable evidence before rejecting it. I believe this is also important because advocates can now use THIS Court decision to point to evidence of layovers in Vietnam.  

The Court rejected the Board’s reasons or bases for its determination that the veteran was not exposed to herbicides in Thailand because the Board acknowledged that Camp Friendship “was located near the perimeter of Korat,” yet found that “Camp Friendship is not located on the perimeter as contemplated by the M21-1MR.” The Court determined that “[t]his discussion of the two locations conflicts with how both the Project CHECO report and the veteran described the locations.”

Advocacy note: I believe this portion of the decision is important because the Court is forcing the Board to reconcile its inconsistent statements with the Project CHECO report. Advocates can now cite to THIS decision to show that the Court has recognized the validity of the Project CHECO report and that the Board has to explain its determinations that conflict with this report.

Finally, the Court rejected the Board’s determination that “the only tactical herbicides used in Thailand were used four years before the veteran arrived and in a wholly separate location than where the veteran served.” The Court found this determination to be in conflict with the C&P Bulletin that acknowledged that there was “some evidence that the herbicides used on the Thailand base perimeters may have been either tactical, procured from Vietnam, or a commercial variant of much greater strength and with characteristics of tactical herbicides.” The Court found this error prejudicial because “[a] VA finding that the veteran did serve near the perimeter of the base may be significant because the perimeter was the only area where herbicides of a type similar to Agent Orange may have been used.”

Advocacy note: I believe this language is important because it forces the Board to comply with the findings in VA’s C&P Bulletin. Advocates can now cite to THIS decision, in addition to the C&P Bulletin, to support the use of tactical-strength herbicides – as opposed to your garden-variety weed killer – on Thailand base perimeters.

FULL DECISION